Madras High Court
T.Balasubramanian vs M.Kanthasamy on 7 February, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.53 of 2013 and M.P.No.2 of 2012 T.Balasubramanian ... Appellant vs. M.Kanthasamy ... Respondent This second appeal is filed against the judgement and decree dated 21.03.2011 passed by the learned Additional District Judge, Fast Track Court No.1, Poonamallee in A.S.No.33 of 2009 in partly modifying the judgment and decree dated 29.10.2008 passed by the learned Subordinate Judge, Poonamallee in O.S.No.62 of 2006. For Appellant : Mr.S.Chandrasekharan For Respondent : Mrs.M.K.Jamuna for M/s.Perumbulavil Radhakrishnan JUDGMENT
This second appeal is focussed by the defendant, inveighing the judgement and decree dated 21.03.2011 passed by the learned Additional District Judge, Fast Track Court No.1, Poonamallee in A.S.No.33 of 2009 in partly modifying the judgment and decree dated 29.10.2008 passed by the learned Subordinate Judge, Poonamallee in O.S.No.62 of 2006.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus:
a. The plaintiff filed the suit seeking the following reliefs:
- to pass a judgment and decree against the defendant
- directing the defendant to pay to the plaintiff a sum of Rs.1,88,000/- [Rupees one lakh and eighty eight thousand only] with interest at 18% per annum on the principal of Rs.1,33,000/- from the date of plaint till the date of realisation
- and for cost of the suit (extracted as such) based on the promissory note and also on the ground that hand loan was given by the plaintiff to the defendant. b. The defendant resisted the suit by filing the written statement.
c. Whereupon issues were framed by the trial court.
d. Up went the trial, during which, the plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A7. The defendant examined himself as DW1 and marked Ex.B1. e. Ultimately, the trial court decreed the suit.
f. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, first appeal was filed by the defendant and the first appellate court modified the decree passed by the trial court by passing decree based on Ex.A1 the promissory note and dismissed the suit based on hand loan. g. Challenging and impugning the judgments and decrees of both the courts below, this second appeal has been focussed by the defendant on various grounds suggesting the following substantial questions of law.
1. Whether the courts below are wrongly considered the Ex.B1 admitted signature of the plaintiff?
2. Whether the courts below are wrongly considered the Ex.A2 and A6, no reply from the defendant?
3. Whether the courts below have wrongly admitted xerox copies of the documents which is marked as Exs.A4 and Ex.A5 are correct? (extracted as such)
4. Heard both sides.
5. The learned counsel for the appellant/defendant placing reliance on the grounds of second appeal would advance his argument, which could pithily and precisely be set out thus:
(i) Ex.B1 the signature in the discharge receipt was admitted by the plaintiff even then, both the courts below did not give due importance to Ex.B1, but simply decreed the suit based on Ex.A1, the pro-note.
(ii) The defendant's son was suffering from brain tumour and hence the defendant had been attending his son ever since 2005 till 2012 and because of his pre-occupation with his son's health he could not give reply to the pre-suit notice and in the written statement he could not set out those details as only his Advocate was managing the case.
(iii) The plaintiff has not chosen to explain as under what circumstances he put Ex.B1, in that receipt. After signing so, he cannot disown the contents of the discharge receipt. But both the courts below failed to take note of all these salient features but simply accepted the case of the plaintiff for gospel truth and decreed the suit warranting interference in second appeal.
6. Per contra, in a bid to torpedo and slam down the pleas as put forth on the side of the appellant, the learned counsel for the respondent/plaintiff would pyramid her argument, which could succinctly and precisely be set out thus:
(i) The contentions as put forth on the side of the defendant are totally unbelievable and no one would be able to digest such pleas.
(ii) Had really Ex.B1 emerged as narrated by the defendant, then there is no knowing of the fact as to what made him not to give reply to the pre-suit notice.
(iii) Over and above that the written statement is silent as silence could be relating to Ex.B1 and the discharge receipt and that was why, the trial court appropriately and appositely, legally and correctly held that such receipt is nothing but an artifact of fraud committed by the defendant and no credence was attached to it. The appellate court also correctly upheld the findings of the trial court and this court in second appeal cannot re-appreciate the findings of fact given by both the courts below and as such, no question of law much less substantial question of law is involved in this second appeal for consideration.
Accordingly, she would pray for the dismissal of the second appeal.
7. Considering the pro et contra, I am of the considered view that Ex.B1 is the crucial document, which the defendant relies upon for getting the second appeal admitted.
8. It is therefore just and necessary to see under what circumstances, as per the defendant, Ex.B1 emerged. As has been correctly pointed out by the learned counsel for the plaintiff, there was no reply to the pre-suit notice at all. In the written statement, the defendant went to the extent of denying the very execution of the Ex.A1 the pro-note itself and having taken such a stand, quite antithetical to it, he would mark holus bolus Ex.B1 the signature of the plaintiff in a document during cross-examination of PW1. According to the learned counsel for the plaintiff, the signature in Ex.B1 was marked in a dubious manner and that too quite antithetical to the law, by showing only the signature portion in the document and hiding to the plaintiff the rest of it.
9. I could see considerable force in the submission made by the learned counsel for the plaintiff.
10. I would like to re-collect and call up the judgment of the Hon'ble Apex Court reported in 2010(8) SCC 452 [ Kapil Corepacks Private Limited and others vs. Harbans Lal (since deceased) through Lrs.]. Certain excerpts from it would run thus:
"23. In this case the appellant-defendants denied having signed/executed any agreement/receipt in favour of the respondents. In the examination under Order 10 Rule 2, the Court did not ask the second appellant whether he had signed the document or not, by showing the document. What was done was confrontation of a signature alone without disclosing the document. When so confronted, the second appellant admitted the signature shown as his signature. But that is not an admission of execution of agreement/receipt. ........"
The practice of getting only the signature portion marked in a document hiding the rest of the portion of the document is deprecated. If at all any signature has to be got marked, then the entire document should be shown to the witness concerned. But, in this case, that was not done. Over and above that, Order 8 Rule 1-A (3) of the Code of Civil Procedure would contemplate that any document, if the defendant is to file, it should be filed along with the written statement as otherwise only with the permission of the court, such document could be filed. No doubt, I am fully aware of the fact that during cross examination, certain portions could be marked by the opponent under Section 145 of the Indian Evidence Act provided the witness admits it. In this case, only the signature was admitted and that too the signature was got marked in a non-legal manner, which I would deprecate that such a practice should not be adhered to by courts.
11. Not to put too fine a point on it, no steps were taken by the defendant to get marked the discharge receipt as per law but he got marked only the signature Ex.B1 in that alleged receipt. As such, it would not amount to marking the receipt.
12. I would like to recollect and call up the following maxims:
(i) affirmantis est probare He who affirms must prove.
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
(iii) Favorabiliores rei potius quam actores habentur Defendants are held to be in a more favourable position than pursuers.
Accordingly, the burden of proof is on the plaintiff to prove the case.
13. Here, at the first instance, no doubt, the plaintiff came forward with a case as though the suit was laid based on both Ex.A1 and hand loan. The theory of hand loan as put forward by the plaintiff was negatived and that it does not mean that the entire case of the plaintiff has to be rejected. The court is not expected to close its eyes and pass orders. In such a case, I could see no perversity in the findings given by both the courts in upholding the validity of Ex.A1. In fact, during trial, the defendant himself had 'U' turn and about turned by putting forth Ex.B1. The theory of the defendant during trial was that in fact, the plaintiff lent money under Ex.A1, but, it was discharged by the defendant.
14. A mere running of the eye over the written statement would clearly evince and evidence that, it was not the case of the defendant at all. As such, quite antithetical to his case in the written statement, the defendant tried to put forward a different case, which was appropriately and appositely negatived by both the courts below, warranting no interference in this second appeal.
15. I would also like to fumigate my mind with the following recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus:
"59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92, this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added)
16. In the same precedent, the following decisions are found referred to concerning the entertaining of second appeals.
(1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT] (6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh] (7) (1996) 5 SCC 353 [Parativa Devi v. T.V.Krishnan] (8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar] (9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.] (10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works (P) Ltd.] (11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan] (12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali] (13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala] (14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh] A mere perusal of the said judgment would display and demonstrate that the second appeal cannot be entertained as a matter of course.
17. No doubt, the learned counsel for the appellant/defendant was persistent in his stand for getting the matter remanded to the trial court for deciding the issues. It has to be held that remanding the matter back, is not a matter of course and this has become a common or garden principle of law.
18. In view of the reasons adhered to by me supra, absolutely there is no ground for remanding the matter back to the trial court.
19. However, what I would like to observe is that pendente lite interest was awarded at the rate of 18% per annum by the trial court, which in my considered opinion appears to be on the higher side. The loan lent was not for commercial purpose. In such a case,in the facts and circumstances of the case, the trial court could have done well by awarding only 6% interest and the first appellate court also could have rectified the mistake committed by the trial court. But the trial court awarded 18% interest from the date of filing of the suit till its realisation, but the first appellate court negatived the plea of hand loan, put forth by the plaintiff and awarded 18% interest per annum from the date of execution of pro-note till the date of decree and 6% interest per annum till the realisation but failed to reduce the pendente lite interest.
20. Hence, I would like to reduce the pendente lite interest from 18% to 6%, in view of the fact that the defendant met with some unfortunate incident in his life as his son himself died due to ill-health. Except to that extent, I do not find any interference with the judgments and decrees passed by both the courts below.
21. With the above direction, this second appeal is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
vj2 To
1. The Additional District Judge, Fast Track Court No.1, Poonamallee
2. The Subordinate Judge, Poonamallee